Citation Nr: 1644411	
Decision Date: 11/23/16    Archive Date: 12/02/16

DOCKET NO.  95-37 042	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1. Entitlement to service connection for degenerative arthritis of the lumbar spine.

2. Entitlement to service connection for degenerative arthritis of the bilateral hips.

3. Entitlement to service connection for degenerative arthritis of the bilateral knees.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Smith-Jennings, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1964 to June 1967 and from September 1967 to June 1973.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

The Veteran's original claim of entitlement to service connection for degenerative arthritis of multiple joints was previously before the Board in September 2003, September 2010, and April 2012, at which times it was remanded for further development.  The record shows that there has been substantial compliance with the directives of the Board's remands; thus the Board will now consider the merits of the Veteran's appeal.  Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand).  Additionally, in light of the evidence presented, the Board has recharacterized the Veteran's claim of entitlement to service connection for degenerative arthritis of multiple joints as separate claims of entitlement to service connection for degenerative arthritis of the lumbar spine, degenerative arthritis of the bilateral hips, and degenerative arthritis of the bilateral knees, as reflected on the title page of this decision.  

The issue of the Veteran's entitlement to service connection for degenerative arthritis of the bilateral knees is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran's degenerative arthritis of the lumbar spine was caused by his service-connected degenerative lumbar spine injury residuals with degenerative disc disease (DDD). 

2. The Veteran's degenerative arthritis of the lumbar spine is a disability for which the Veteran is not already compensated. 

3. The evidence does not demonstrate that the Veteran's degenerative arthritis of the bilateral hips is attributable to the Veteran's active service or any incident of service, to include as secondary to the Veteran's service-connected degenerative lumbar spine injury residuals with DDD.


CONCLUSIONS OF LAW

1. The criteria for service connection for degenerative arthritis of the lumbar spine have been met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015).  

2. The criteria for service connection for degenerative arthritis of the hips have not been met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.310 (2015).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015).

Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Here, the RO provided adequate notice in a March 2004 letter.  Although complete notice may not have been provided to the Veteran until after an initial decision on the claim by the RO, the claim was readjudicated thereafter in a September 2008 supplemental statement of the case (SSOC).  Thus, there was no prejudice to the Veteran. 

With regard to VA's duty to assist in the development of a claim, VA must assist a claimant in obtaining service treatment records (STRs) and other relevant records identified by the claimant.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(3).  Pursuant to this duty, VA associated with the Veteran's claims file his STRs, VA treatment records, and records of his relevant private treatment.  Notably, in the September 2010 remand, the Board noted that two of the Veteran's three claims files were missing.  The case was remanded to the Appeals Management Center (AMC) to attempt to locate the missing files, or in the event that the files could not be located, to attempt to rebuild the claims files.  After attempts to locate the missing files failed, the AMC sought to rebuild the claims files.  As a result, numerous VA treatment records dating from 1994 to 2011 and adjudicative documents were associated with the claims files, however, the file remains incomplete.  The Board finds that VA made reasonable efforts to obtain the missing information and no further action is necessary in this regard.  

Coincident to VA's duty to assist the Veteran in substantiating his claim, VA must also provide an examination or obtain a medical opinion when necessary.              38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4).  The record shows that VA provided an adequate medical examination in June 2012.

The Board finds that no further notice or assistance to the Veteran is required for a fair adjudication of his claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);         see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Thus, all necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).



II. Service Connection for Degenerative Arthritis of the Lumbar Spine & Bilateral Hips

As noted previously, the Veteran seeks service connection for degenerative arthritis of multiple joints.  He essentially asserts that service connection is warranted because he developed progressive osteoarthritis that affected all of his major joints secondary to his service-connected lumbosacral spine injury residuals with DDD. 

Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  

Service connection may also be granted through the application of statutory presumptions for chronic conditions, such as arthritis.  See 38 U.S.C.A. §§ 1101(3), 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a) (2015).  Arthritis is included under 38 C.F.R. § 3.309(a); therefore,          38 C.F.R. § 3.303(b) also applies.  38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013).  Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service.  38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1336-38.  The application of these presumptions operate to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. 

Further, service connection may be established on a secondary basis for a disability which was either caused or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) (2015); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence.  VA must also consider all favorable lay evidence of record.  See 38 U.S.C.A. § 5107(b) (West 2014); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge).

Here, current degenerative arthritis disabilities of the lumbar spine and bilateral hips are confirmed by the evidence of record.  More specifically, the Veteran's medical records document treatment for degenerative joint disease (also alternatively referred to as arthritis) of the lumbar spine and bilateral hips.  The Veteran was also afforded a VA examination in June 2012, at which time diagnoses included degenerative joint disease of the lumbar spine with disc disease and degenerative joint disease of the hips.  See June 2012 VA Exam.  The Board will address these disabilities in turn.  Arthritis was not found in other joints upon examination.

A. Lumbar Spine

With regard to the claim for service connection for degenerative arthritis of the lumbar spine, the Board notes that service connection was granted for lumbosacral spine injury residuals with DDD in an April 1978 rating decision.  However, it does not appear that degenerative arthritis of the lumbar spine was considered part of the disease process of the service-connected lumbar spine disability.  Notably, arthritis of the lumbar spine was documented in 1990, twelve years after the Veteran was service-connected for lumbosacral spine injury residuals with DDD.  See April 1990 VA Exam.  The evidence of record includes a VA examiner's opinion that the Veteran's degenerative arthritis of the lumbar spine was at least as likely as not caused by or a result of his service-connected lumbar spine injury residuals with DDD.  See June 2012 VA Exam.  As there is no competent evidence to the contrary, the Board finds that the Veteran's degenerative arthritis of the lumbar spine was caused by his service-connected lumbar spine injury residuals with DDD.  Thus, to the extent that the Veteran's arthritis of the lumbar spine is a separate and distinct disability, the Board finds that service connection is warranted.    

B. Bilateral Hips
	
The Board now turns to the Veteran's claim for service connection for degenerative arthritis of the hips.  The Board notes that the Veteran's STRs do not document diagnoses of degenerative arthritis of the hips or an in-service hip injury.  At a personal hearing in January 1996, the Veteran testified that an orthopedist at the Worcester VA Outpatient Clinic informed him that his arthritis was spreading from his back to his other joints.  See March 1997 Supplemental Statement of the Case.  However, the evidence of record includes a VA examiner's opinion that the degree of arthritis demonstrated radiographically in the Veteran's hips is mild and entirely consistent with the normal aging process in a 65 year old Veteran who worked as a skilled laborer and is obese.  See June 2012 VA Exam.  Further, the VA examiner opinion noted that the Veteran has a normal gait, so it is unreasonable to attribute it to mechanical factors or secondary to back pain.  Id.  

The Board finds the June 2012 VA examiner opinion to be highly probative.  The opinion was based on a review of the claims file and relevant facts, and the examiner provided a detailed rationale.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Therefore, the Board finds that the Veteran's degenerative arthritis of the hips was not caused or aggravated by the service-connected lumbar spine injury residuals with DDD.  

Without any evidence that the Veteran's degenerative arthritis of the hips is related to service, direct service connection is also not warranted.  Further, there is no indication that the disability manifested within one year of service, so service connection based on the chronic disease presumption is not warranted.   

To the extent that the Veteran has stated that he has degenerative arthritis of the lumbar spine and hips that is attributable to service, the Board finds that he is competent to report on his symptoms and that of which he has personal knowledge, but he is not competent to provide an opinion as to the etiology of his arthritis because such a question is not answerable by the application of knowledge within the realm of a lay person.  See Layno, 6 Vet. App. at 469-70; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Therefore, the Board finds that the Veteran is not competent to assert that his diagnosed arthritis may be attributed to service.

The Board finds that the Veteran's degenerative arthritis of the hips was not caused or aggravated by the service-connected lumbar spine injury residuals with DDD, and did not have its onset in service or within one year of his discharge from active service, and is not otherwise related to a period of active service; therefore service connection is denied.  There is no doubt to be resolved in this case.  38 U.S.C.A.     § 5107.


ORDER

Service connection for degenerative arthritis of the lumbar spine is granted.

Service connection for degenerative arthritis of the bilateral hips is denied.


REMAND

Although the Board regrets the delay, it finds that additional development is necessary prior to appellate review of the issue of entitlement to service connection for degenerative arthritis of the bilateral knees.

As requested in the April 2012 remand, the Veteran was afforded a VA examination to determine the etiology of all arthritis present at any time during the pendency of the claim.  However, the Board finds that the VA examination is inadequate as to the issue of entitlement to service connection for degenerative arthritis of the bilateral knees.  The VA examiner concluded that the Veteran's diagnosed degenerative arthritis of the bilateral knees is less likely as not caused by or a result of the Veteran's military service.  See June 2012 VA Exam.  The examiner's rationale stated that the degree of arthritis demonstrated radiographically in the Veteran's knees was mild, and entirely consistent with the normal aging process in a 65 year old Veteran who worked as a skilled laborer and is obese.  Id.  The rationale further stated that the Veteran also has a normal gait, so it is unreasonable to attribute it to mechanical factors or secondary to back pain.  Id.

However, the VA examiner's opinion did not address an in-service knee injury recorded in the Veteran's STRs.  The Veteran's STRs document an in-service knee injury in February 1968 and a possible diagnosis of chronic mild arthritis and early degenerative joint disease of the left knee.  Thus, because the June 2012 VA examiner opinion may not have considered all of the evidence included in the claims file, the Board finds that the opinion is inadequate in this regard and a remand is necessary. 

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records.

2.  After completing the development requested above, schedule the Veteran for a VA examination to determine the nature, etiology, and date of onset of the Veteran's bilateral knee arthritis.  The claims file should be made available to the examiner and review of the file should be noted in the requested report.  The examiner should record the full history of the identified disability, including the Veteran's competent account of his symptoms.  Following review of the claims file and examination of the Veteran, the examiner should respond to the following:

   (a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed bilateral knee arthritis had its onset during active service or within one year of the Veteran's separation from active service in either June 1967 or June 1973, or is otherwise related to service?
   
   (b) Is it at least as likely as not that the diagnosed bilateral knee arthritis was caused or aggravated by the Veteran's service-connected lumbar spine injury residuals with DDD, or service-connected degenerative arthritis of the lumbar spine?

All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record.  If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 

3.  Readjudicate the claim on appeal.  If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs